Navigating probate can be tricky without guidance

RONALD LIPMAN, HOUSTON CHRONICLE

Published 6:30 am, Monday, December 28, 2009

The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q. My mother died this year, and I am her executor and only heir. Everything passed to me without probate, except for one $10,000 account. I used an Affidavit of Heirship to sell her home, but the brokerage firm will not accept it for the account. It wants me to probate the will. Can I probate it myself?

A. You do not need a lawyer to probate a will in Texas. The trick, though, is figuring out all the steps you need to take. The courts typically won't tell you, and most lawyers want to get paid to do it for you.

Here is one option that recently was pointed out to me. If you have served in the military, you should contact the Judge Advocate program at a military base in Texas to see if it will provide you with the forms and walk you through the process. For instance, the legal assistance division at Fort Sam Houston will tell you all you need to know, and answer all your questions, for free. See www.samhouston.army.mil/sja/default.asp for more information.

Q. Regarding your article about having to probate a house, a relative of mine said they had a trust set up that eliminated probate. Is this possible? We can't afford thousands for an attorney.

A. Yes, it is possible, and the document is called a revocable trust. However, this trust doesn't eliminate all costs. Most attorneys charge several thousand dollars to set one up.

Q. What should I expect to pay for a simple will, for my wife and me, that passes assets to each other first, then outright to our two sons? Also, what is the cost for a special needs trust for the benefit of our disabled son?

A. You should expect to pay $500 to $2,000 for the wills and other documents. Special needs trusts increase the cost of a will, especially if the trust is added as part of the will. If you are setting up a separate special needs trust created in an irrevocable trust agreement, the cost probably will be $2,000 to $4,000 extra.

Some lawyers may charge less, and others may charge more.

Q. My wife and I have different last names and have two separate wills leaving everything to the other. Do we need separate wills because of our different last names? When either one of us passes away, what does the survivor have to do to avoid probate? How do we change my wife's last name?

A. The fact that you have different last names is of no consequence when it comes to having two wills. Husbands and wives almost always have separate wills.

Avoiding probate is not possible when you die with a will. It must be probated. If you want to avoid probate, you should set up a revocable trust.

Changing your wife's last name requires going to court and you'll need a lawyer's assistance. You should expect to pay at least $1,000 in attorney fees for this service.